On May 10, 2018, the Environmental Law Institute (ELI) and the law firm Arnold and Porter hosted a day-long conference in Washington, D.C., entitled Infrastructure Review and Permitting: Is Change in the Wind? Alex Hergott, Associate Director for Infrastructure for the White House Council on Environmental Quality (CEQ), provided the afternoon keynote. He asked the distinguished audience whether any of us thought that the NEPA process, and specifically the environmental impact statement (EIS) process, couldn’t be delivered faster, at lower cost, and with fewer pages of documentation, without forsaking environmental protections. He went on to provide many good points and examples in support of answering his own question. His sentiment was echoed by the 30+ speakers at the event who also touched on the “streamlining” challenge. And most experts and professionals agree that the current EIS process takes too long, costs too much, and often produces indigestible, cumbersome, and lengthy documentation. While there has been an increased focus on the initiative to streamline NEPA under the Trump Administration, NEPA practitioners have grappled with this issue for years.
Current Challenges
When CEQ’s NEPA implementing regulations were established in 1978, CEQ instructed practitioners to prepare concise, analytical documents that foster better-informed decisions and excellent action. The regulations even state that “NEPA’s purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action.” But many practitioners are quick to identify a litany of justified reasons as to why the process is more cumbersome and costly than intended.
There is a critical difference between the general goals of NEPA and the current reality at the project-specific level. Below, we touch on some of the most critical components burdening the process: time, cost, and length of documents.
Time. Based on our experience, the three most common sources of delay (and cost escalation) are indecision, indecision, and indecision:
- Indecision about the details of the proposed action and/or alternatives during document development.
- Indecision about the methodologies, data, and/or information necessary to fully characterize the affected environment, potential effects, and/or corresponding mitigation measures.
- Indecision about how conflicting missions, policies, and opinions will be resolved early and throughout the process when barriers are encountered, such as staff turnover, new information coming to light, or disagreements over process, substance, analysis, or other measures of adequacy.
The best way to address these challenges within a finite time line (e.g., two years, as currently envisioned under the White House’s proposal) is to have a clear understanding of: the proposed action and alternatives; involved stakeholders; areas and sources of potential controversy; the area of potential effect and region of influence; potential environmental effects; applicable regulations and regulatory requirements; responsible agencies; and how all of these components interplay in time and space to result in an outcome. Having such clarity during the entire process can help reduce the indecision factors noted above.
The FAST Act has proven successful in this regard. It requires an engagement plan, a commonly accepted schedule, and clear time lines and responsibilities for involved agencies and stakeholders at the start of the process, tracked through a publically accessible permitting “dashboard” that ensures transparency and accountability and serves to usher along potential delay-makers. Through clear and complete upfront internal and external scoping, as well as open communication between stakeholders throughout the process, more aggressive time lines become real and achievable. This approach requires substantial “heavy lifting” up-front in the process, coupled with all stakeholders agreeing to timely reviews and collaborating to address and resolve areas of controversy whenever possible. The White House’s draft streamlining plan, set forth in the Legislative Outline for Rebuilding Infrastructure in America provides additional measures, such as regulatory reforms and reductions in review duplications, that would further serve to achieve more aggressive NEPA performance time lines.
Cost. Costs often go hand-in-hand with time. Through a clear, upfront understanding of all project requirements, costs can be more accurately predicted as responsibilities, issues, time lines, involved participants, and processes become equally clear. Escalated costs generally result from uncertainty and delay. By maintaining and enforcing clear, accelerated time lines, coupled with greater certainty of requirements early in the project planning process, costs are better controlled.
Length of documents. CEQ has been clear since 1978: the NEPA process is not intended to result in longer documents; the NEPA process is designed to result in better decisions. At multiple points, CEQ has encouraged NEPA preparers to focus on issues significant to the decision, which would serve to limit the girth of documents, avoiding cumbersome “kitchen sink” analyses. The CEQ regulations specify that scoping should be used to “identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review” and that the EIS should provide a “brief presentation of why they will not have a significant effect on the human environment or providing a reference to their coverage elsewhere.” Document size can therefore be reduced by focusing on such critical and relevant environmental issues.
The Path Forward
The goal of NEPA has always been to foster better decisions, recognize potential environmental effects, and implement environmental measures that “protect, restore, and enhance the environment.” This has not changed.
Yet, the process has evolved over the years to its current slow pace due to a myriad of reasons, including overlapping environmental regulations, duplicative agency review cycles, inconsistent agency NEPA implementing regulations, “injunctophobic” NEPA processes, and a desire to create “bullet-proof” NEPA documents in the face of ever-increasing judicial challenges The solutions we proposed here should help overcome these trends.
In addition, most NEPA implementing regulations and guidance are quite old and fail to take advantage of modern technologies related to data presentation, public involvement, and visual-heavy presentation. A “picture is still worth 1,000 words,” and our NEPA processes should match the speed of available technologies to convey information in more user-friendly, digestible, visual, and condensed formats. Addressing just this one factor could substantially evolve the NEPA process and serve to shorten documents.
There are many opportunities to reform federal permitting and streamline the NEPA process. While differences in opinion on proposed agency actions will continue to persist, this does not have to result in delays or longer, more costly documents.
At AECOM, we are encouraged by a common theme at the May 10 ELI conference, voiced by presenters with varying and wide perspectives on the matter: no one is suggesting to reduce or remove environmental protections, robust public and agency involvement, or adequate environmental impact analyses. Neither did attendees feel that longer, more costly, and more paper-consuming analyses result in better outcomes. Agreement was clearly seen in the need to achieve streamlining and permitting reforms.
AECOM looks forward to actively participating in this evolution, producing better, more concise, more cost-effective, and more rapid environmental analyses while simultaneously achieving the original spirit and intent of NEPA.